As many of you know H1B Visa has crazy demand and we had H1B Lottery for the last consecutive 9 years. Previous Trump administration published a final rule during their last few months in office, where the H1B lottery would be based on wage levels. It was later challenged in court and ultimately, there was a decision on the same on Sep 15th, 2021. In this article, we will review the decision and share the final Judgment documents for your review.
Background : What is H1B Lottery based on Wage Levels Rule ?
Currently, the H1B lottery during the Registration process is based on random selection and there is no preference given to anyone or any criteria. DHS published a regulation on Nov 2, 2020, to change the H1B lottery selection process to be based on H1B Wage Levels. It was priorities of the previous Trump administration as per Buy American, Hire American Executive Order and Proclamation to suspend H1B, L1 workers to enter US to protect US workers. The final rule document was about 184 pages. More than 120 pages of the same are comments summaries and responses to the same by DHS. Read Summary of the H1B Wage Levels based Lottery Final Rule
Why Wage Levels (Salary) for H1B Lottery Selection: The overall premise of the new rule was to have the H1B lottery selections based on wage levels offered for the H1B position. DHS logic is that salary or wage level is a good indicator for the skill. If they select people with higher salaries or higher wage levels, they are hiring the best of the high skilled workers available in the pool. In fact, based on analysis, the H1B Lottery based on Wage Levels would impact 163,000 applicants
Histoy of Court Case, Biden Administration Actions
Biden Administration Action : The Wage levels based H1B Lottery rule was supposed to be effective from March 9th, 2021 as per the previous Trump administration. But, the Biden Administration, after they took office, they issued an alert indicating the delay in implementing this rule until December 31st, 2021. Check DHS press release and DHS Notice on Federal Register with all information
History of Court Case :
A court case was filed in October 2020 challenging the rule in US District Court in Northern District of California. Since then, it has been litigated in court. The official Case title is “Chamber of Commerce of the United State of America v. United States Department of Homeland Security “. It has been going on and on since then. There were a lot of documents submitted and lot of reviews done. Eventually, the court gave a judgment on Sep 15th, 2021. Let’s look at that now.
Court Judgement Cancelling H1B Wage Levels Lottery Rule
The final judgment was given by US District Court Judge Jeffrey S. White. One of the biggest arguments points by the plaintiffs was that Mr. Wolf, who was the DHS Secretary back then, was not lawfully serving as the DHS secretary. As the rule was implemented by him when he was not lawfully appointed, the rule is not valid.
The final judgment quotes how other courts have confirmed the fact that Mr. Wolf was not lawfully serving as the DHS Secretary. Based on all of the other court’s decisions, the current District Court as well made the conclusion that Mr. Wolf was not lawfully serving as DHS Secretary and the rule published under him is also not valid. See below screenshot on the same.
Based on the above and also the fact that the current DHS Secretary, who is Mayorkas has not yet ratified the Final Rule, the court is canceling the rule. See the below screenshot.
The court did not really look at the actual arguments in the case or the justifications given by DHS or others. It is more around the procedural aspects, the rule is canceled. As of now, we do not know, if DHS would be going back and doing an appeal. As many courts have confirmed this point, it may be difficult for DHS to succeed, even if they appeal… Also, this rule is being challenged in another case as well called “Humane Society of America v. Mayorkas” and it is still ongoing.
Official Court Judgment Documents
Below are the two official Court Judgement Documents for your review.